The budget for National Labor Relations Board fiscal year 2022 was $274million, which may sound like a lot. But it is the same amount as the Board’s budget for Trump-era fiscal years 2021 and 2020, and that is a problem.
In fact, the NLRB has not had an increase in funding since 2014, the year that the Republicans took control of Congress during the Obama administration and reignited their decades-old campaign to deep-six workers’ rights to unionize.
No increase “means a cut to the agency’s funds, due to inflation and other factors,” explains Burt Pearlstone, president of the NLRBU, the union representing workers at the agency.
Biden’s administration had requested a 10% increase in funding for the NLRB in this year’s budget. Republicans opposed the increase, claiming that it was too costly. Privately, many were just doing the bidding corporate backers to weaken an agency already in serious trouble. The administration accepted flat funding when the overall budget was passed in March.
Hollowed Out, For Purpose
A goal of the Trump administration, and the Republican Party generally, has been to decimate what they refer to as the “administrative state.” During the Trump years, agency heads were appointed to hollow out federal agencies from within. Trump appointed Peter Robb as General Counsel to the NLRB. Robb is a famous management lawyer who broke the strike by air traffic controllers under Reagan.
Robb tried to weaken agency staff by changing pro-union case law, but many of his efforts were blocked.
The Board’s case law is changing slowly. The case must be filed with the agency before the General Counsel can make the changes he or she wants.
Some of Robb’s initiatives were stopped by ALJs; for others, he did not find the appropriate case. The story would have been different if Trump had won a second term while Robb was still in power.
Robb was nevertheless able to cause significant damage to the agency. His reign saw many jobs left vacant across the nation. There is always a certain amount of turnover, as staff move on to other jobs; those jobs were not backfilled during Robb’s tenure. He offered buyouts in 2018, enticing more staff to leave. Those jobs were also not backfilled.
The NLRB even failed to spend its budget in 2018 and 2019, prompting an investigation by the Board’s Inspector General. Underspending violates the laws establishing Congress’s spending authority (as does overspending).
The workload for those who still work at the NLRB Regions increased dramatically as a result of the loss of people. When President Biden took office in 2021 there was already a significant backlog waiting to be scheduled. The time it took to schedule those trials took longer than expected before an ALJ.
A New Sheriff
Biden was credited with firing Robb his first day in office. Shortly after, he appointed Jennifer Abruzzo as the agency’s General Counsel.
Abruzzo worked for the NLRB in various capacities including as Assistant General Counsel for 23 years. She left the NLRB to join the Communications Workers (CWA) when Trump appointed her.
Abruzzo is familiar with the agency from all angles. She is determined to uphold the original intent of National Labor Relations Act. This is to equalize the playing field between employers and workers, and to protect the rights and interests of all working people who are collectively striving to improve their lives.
Abruzzo sent memos to the agency almost immediately announcing cases and practices she wanted to see reviewed and revised. She demanded the reinstatement of the Joy Silk Standard (where the Board would require that an employer recognize the union after a majority of workers have signed union authorization cards), increasing penalties for law-breaker employers, declaring unlawful mandatory anti-union meetings, and other pro-worker initiatives. The labor movement was alert.
Gwynne Wilcox, a union-side labor lawyer, was also appointed by Biden to fill vacancies on the five person Board. Prouty is a union-side labor lawyer. The majority of Board members are now Democratic appointees. Both Prouty, Wilcox, and others have fought in the trenches over years for workers and unions. They understand how NLRB procedure and case law can be used either to help or hinder workers.
Hamstrung by Understaffing
The new appointments to the Board and the new General Counsel are exciting news — and not a moment too soon. Union organizing is on the rise. Workers across the country are taking on big corporations like Starbucks, Amazon, and Trader Joe’s, as well as seeking to unionize in unexpected places — comics, gaming, tech.
Filings to the NLRB for union election filings between October 2021 and March 2022 increased by 57 percent compared with the same period a full year ago. Employer lawbreaking is on the rise. Employer charges for unfair labor practices have risen by 14 percent in the same time frame.
All the pieces are in place for positive developments at the NLRB, except for one thing — there are fewer people to do the work.
Robb has accelerated the Republican attack against the agency. This is evident now. The agency’s field staff saw a reduction of more than 40% between 2012-2022.
Field staff are lawyers and examiners who conduct union elections, investigate cases and prosecute unfair labor practices. They also support administrative professionals who support this work. The Brooklyn Region, which was responsible for the Staten Island election at Amazon, has seen its staff decline by 40% since 2012.
Everything takes longer now. Employers are more likely to be delayed. Workers begin to feel that they can’t win and give up or move on.
Death by Delay
That is Amazon’s goal in Staten Island. The company filed 25 objections against the election at JFK8. Amazon claims that the Amazon Labor Union displayed unacceptable behavior and that the Brooklyn Region of NLRB delayed investigation into unfair labor practice allegations, instead of dismissing them. This created the impression of Amazon violating the law affecting the vote.
Amazon claims that the Brooklyn Region received assistance by other Regions for the Staten Island election. However, Amazon also claims that the agency mishandled and provided insufficient staff to the election. Amazon claims that the underfunding by the agency is the reason for the election being overturned.
Amazon’s claims of violations on the part of the Brooklyn Region also caused the hearing to be moved to the Region in Phoenix, Arizona, to avoid a conflict of interest. This caused delay as well. The Phoenix hearing did not start until June 13, months after the vote.
The objections hearing can take months. It will take many more months before briefs are filed and a decision is made. Other legal delay tactics will be used.
Dragging things out is Amazon’s goal; understaffing aids that goal.
Even if the agency has increased staff to resolve Amazon-related issues (which is what it did), there are less field staff available to handle the increased number of cases involving workers or unions at other companies.
Brooklyn Region workers feel overwhelmed by their workload. Many have started to talk about leaving. The Brooklyn chapter has met with Abruzzo to seek relief.
“Brooklyn is not the only Region feeling overwhelmed by the workload,” says Pearlstone. This is what he hears from workers at NLRB Regions all across the country. “The only solution is more money to hire more people.”
This must be fixed by Biden
Biden claims to be proworker and prounion. He has supported the PRO Act, recommended greater worker rights in the federal government, issued a pro-worker message to employees at Amazon’s Alabama warehouse, and jubilantly told Amazon “Here we come!” after the first union win in Staten Island. He has also nominated a General counsel and new Board members who are concerned about the enforcement of the National Labor Relations Act.
But without sufficient funding for the NLRB, all of Biden’s statements could end up being little more than hollow promises.
Unions and labor activists should demand that the Biden Administration provide more resources for the NLRB. Adequate funding for the agency has got to be a major issue for the labor movement — or else the wave of new organizing that has ignited our imaginations and revived an understanding of the importance of labor may wither away.
